TMI Blog2019 (6) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... gible for input service credit post amendment dt. 01/04/2011 vide Notification No.3/2011 dt. 01/03/2011. Time Limitation - HELD THAT:- The appellant had a bona fide reason to believe that he is entitled to CENVAT credit as the issue relates to interpretation and therefore it cannot be alleged against the appellant that he has suppressed the material fact with intent to evade payment of duty - extended period cannot be invoked - the disputed service has been availed for the period from April 2011 to October 2013 whereas the show-cause notice issued on 02/01/2015 which is clearly beyond the normal period of one year as provided under the Act - demand is barred by limitation of time. Appeal allowed - decided in favor of appellant. - E/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. But in the impugned order, the learned Commissioner has disallowed the CENVAT credit on canteen services on the ground that outdoor catering services which is primarily for personal use or consumption of an employee, is specifically excluded from the definition of input service. The learned consultant has relied upon the following decisions to buttress his argument that the impugned order is beyond the show-cause notice and is liable to be quashed:- a. CCE C Vs. Sun Pharmaceuticals Inds. Ltd. [2015(326) ELT 3 (SC)] b. Commissioner Vs. Reliance Ports Terminals Ltd. [2016(334) ELT 630 (Guj.)] c. Volvo India Pvt. Ltd. Vs. CCU [2005(180) ELT 489 (Tri. Bang.)] d. Ashok Organic Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the worksheet attached with the show-cause notice. He further submitted that CENVAT credit has been denied on canteen services by invoking the extended period of limitation but in the show-cause notice it has not been alleged as to how the appellant is guilty of any of the acts mentioned in Section 11A(4) of the Act. Show-cause notice simply says that the appellant deliberately claimed irregular CENVAT credit and such acts would not have come to the notice of the Department but for the audit of the Department. The show-cause notice has not even alleged any of the ingredients for invoking extended period of limitation. He further submitted that the Department has not alleged in the show-cause notice that the appellant has suppressed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said wrong credit, the amount would not have been recovered from the appellant. I find this reasoning standing alone cannot be accepted as a ground for confirming suppression, mis-statement or mis-declaration of facts by the appellant, in availing the inadmissible CENVAT credit on the input services used in the trading of the goods and not in or in relation to the manufacture of the goods. 3.3. He also relied upon the decision of the Hon ble Madras High Court in the case of CST Vs. Vijay Televisions (P) Ltd. [2015(40) STR 671 (Mad.)] wherein it was held that merely alleging that the assessee has suppressed facts with an intent to evade payment of tax without discussing as to how the assessee has committed the offence is bad in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2009(240) ELT 78 (Tri. Bang.)] c. Lear Automotive India Ltd. Vs. CCE [2013(291) ELT 411 (Tri. Ahmd.)] 3.4. Learned consultant also submitted that in view of the various decisions of Hon ble CESTAT, appellant had a bona fide belief that service tax paid on the canteen services is available as CENVAT credit. He further submitted that it s a settled principle that extended period of limitation cannot be invoked when the assessee acts on a bona fide belief. 4. On the other hand, the learned AR defended the impugned order and submitted that when the outdoor catering service has been specifically excluded from the definition of input service w.e.f. 01/04/2011, then how the appellant says that he has bona f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been finally settled by the Larger Bench of this Tribunal in the case of Wipro Ltd. wherein the Larger Bench has held that outdoor catering service is not eligible for input service credit post amendment dt. 01/04/2011 vide Notification No.3/2011 dt. 01/03/2011. Now coming to the question of limitation, I find that the show-cause notice shows that the Revenue has alleged that the appellant has deliberately claimed irregular CENVAT credit and such details would not have come to the notice of the Department but for the audit by the Department. Further I notice that in the show-cause notice, the requirements for invoking the extended period of limitation as provided in Section 11A(4) of the Act has not been mentioned at all. Further I find th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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